Week Three: Graduate Advancement Program Part I: “Real Life” Legal Research Professor Eric Schiffer ’95 LEX OPUS APC Part II: Filing your First Lawsuit: the COMPLAINT & Responsive Pleadings & Motions Professor Steven P. Byrne ’77 Professor Steve Kester ’78 Byrne & Associates Archer Norris PLC [Retired]

“Real Life” Legal Research Professor Eric Schiffer ‘95 LEX OPUS APC

YOU’VE RECEIVED AN ASSIGNMENT. NOW WHAT?

Understand Exactly What is Being Requested

Both specific to the assignment and big picture for the case What are the issues? Both specific to the assignment and big picture for the case

2. How much time are you expected to spend? (budget your time)

3. What form should the product take 3. What form should the product take? (memorandum, pleadings, oral presentation)

(make it your business to know the When is it due? (make it your business to know the filing deadline as well as the deadline given to you)

Make a Game Plan Make it meaningful to you (outline) Start with the source material (factual issues for a pleading, opposition to a motion, etc.) Prioritize each portion of the assignment and stick to it (but be flexible)

Research the issue Start with secondary sources - Helps you to understand the issue better - Rutter Group, Witkin, CACI, Treatises Secondary sources are never a substitute for primary sources - Read the cases - Read the statutes (and the annotations)

What should the product look like? Get samples (from the firm, on-line, court records, colleagues) No extra points for originality (efficiency is everything)

Your Product Must be Your Best Product Every Time Never submit a draft unless specifically requested to do so Make sure all proper names are accurate with subject/verb agreement Proofread. And then proofread again (any written product, including emails)

Ask Questions, But Be Smart If you can find the information yourself, find it! Don’t look for safety blankets (am I doing this right?) Your work and your Work Process need to inspire confidence in your boss Request a time to speak and come prepared

The Answer should never be “I don’t know” even when you don’t know Attorneys are paid to find the best answer they can find Not every issue has a clear answer Be resourceful

Find an Answer, and be able to Justify it Be prepared to show your boss what you did and where you looked Give your conclusion legitimacy It’s okay to be wrong

Welcome Constructive Criticism Ask for feedback at a convenient time Take the recommendations to heart and implement them

Starting the Lawsuit: The Complaint Professor Steven P. Byrne ‘77 Byrne & Associates Planning, Drafting and Filing Complaints and Responsive Pleadings

Sleazy V. Leadfoot Plaintiff Charles Sleazy’s Case: Develop a Theme of the Case – What is this case about? Consider available causes of action What facts are favorable to each cause of action? What facts are unfavorable? Is your theory supported by the law? Complete your legal research prior to preparing pleadings. Review authority that supports your opponent’s claim. Consider Jury instructions as a guide. Ethical/Professional responsibility.

Evidence in support of your case Identify witnesses as soon as you can. Do we have witnesses in this case? Identify documents and other tangible evidence available. What is it in this case? Identify evidentiary issues which could be problematic. (e.g. inadmissible or illegally obtained evidence) Anticipate possible defenses to Mr. Sleazy’s claim Evidence in support of each defense Can you do or say anything to defeat the defense?

Proper Court Who is your audience? Jurisdiction Limited Jurisdiction Court. Unlimited Jurisdiction. Venue - Proper court (location) in which to file. Court realignment in Los Angeles County All Personal injury cases are filed in Central or Unlawful Detainer (evictions) in hub courts Probate in Central Who is your audience? Jury trial or a court trial. Do you need to humanize your client or dehumanize your opponent (Is your client an individual or a corporation - why this may matter)

Preparation of the Complaint- Contents a. Capacity of plaintiff Sleazy [CCP 367-377]. b. Residence (generally optional) [CC 1812.10, 2984.4; CCP 392-395.5]. Name, capacity, and residence of defendants d. Fictitious name allegations, if appropriate [see CCP 474]. e. Agency allegations, if appropriate. Other facts showing proper venue, if required [CCP 396a]. g. Facts constituting cause of action [CCP 425.10(a)].

h. Prayer for relief [CCP 425.10(b)]. i. Joinder of other causes of action of plaintiff or of co-plaintiffs with cause of action against defendant(s) [CCP 427.10(a)]. Joinder of parties. Permissive. Plaintiffs. [CCP 378(a)]. Defendants.[CCP 379(a)]. Compulsory. Persons required as parties [CCP 389(a)]. Reluctant co-plaintiff [CCP 382].

Drafting the Complaint Mandatory format requirements [Cal. Rules of Ct. 201] Traditional (non-form pleading) Judicial Council Form Pleadings Attachments - Causes of Action Contract Personal Injury, Property Damage, Wrongful Death Unlawful Detainer

Signing - The Complaint must be signed by the attorney of record Signing - The Complaint must be signed by the attorney of record. [CCP 128.7] Verification - Not always required. By affidavit or declaration if verification is required or desired [CCP 2009, 2015.5]. Execution of verification [CCP 446]: Individual plaintiff Authorized officer if the plaintiff is not an individual. By Counsel if plaintiff is not in the county in which counsel has offices or is unable to verify it or when facts are within attorney's knowledge.

Additional documents required to be filed with the Complaint Summons - Judicial Council form is required. [Gov Code 68511; Cal. Rules of Ct 982]. Original for issuance by Court Clerk and copies to conform Civil Case Cover Sheet Addendum to Civil Case Cover Sheet Alternative Dispute Resolution (ADR) forms Certificate of merit [claim for professional negligence of architect, engineer, or land surveyor [CCP 411.35(a)]. Notice of Related Cases, if any. [Ca. Rules of Ct., Rule 804(a)] Cover sheets or other papers required by local court rule.

How many copies should you make? Copies of Pleadings How many copies should you make? Original for filing. Copy for service on each defendant. Copy for office file. Copy for client Additional copies as desired.

Filing the Complaint Most lawyers use an Attorney Service. Select the court with proper venue and subject matter jurisdiction. See Section 1A(6) above. Deliver Summons, Complaint and related papers to court clerk filing window Fax filing, Electronic Filing Pay filing fee [Gov. Code 26820.4, 26820.6]

Service on Defendant [Susan Leadfoot] Most lawyers use a Registered process server with an attorney service or the County Sheriff. Have a conformed copy of the summons served on each defendant, together with a copy of the complaint and all other documents [CCP 413.10- 416.70]. Proof of Service. The person who served the pleadings must prepare and file a separate declaration of service for each defendant [CCP 417.10 et seq.] A Party to the action may not serve the pleadings.

Default – If a defendant fails to respond in a timely manner. Request for entry of default. [CCP 585]. Declarations in support of entry of judgment [CCP 585].

Take a Break

In-Class Exercise You are a new Associate at the world-renowned firm of Byrne & Trost. You attended Charles Sleazy’s intake interview on September 6th and now have received a memorandum from your supervising attorney to draft a Complaint in this lawsuit. Use Judicial Council Form PLD-PI-001 You have 15 minutes

Don’t Forget to Bill Your Time!

Responsive Pleadings & Dispositive Motions Professor Steve Kester ’78 Archer Norris, PLC [retired]

Defendant’s Initial Pleadings - Answer Traditional format or Judicial Council form pleading Judicial Council Contract Personal Injury, Property Damage, Wrongful Death Unlawful Detainer Affirmative Defenses (Appendix 2) Prayer for Relief

Other Initial Responsive Pleadings/Motions Demurrer “So what! Even if what you say is true . . . there’s no cause of action!” Motion to Strike “You can’t say this!” Motion to Quash Deposition Subpoena “Ha! Ha! You made a mistake!”

DEMURRERS [Code of Civ. Proc. § 430.10] Used mostly frequently to object to a Complaint or Cause of Action within a Complaint for lack of facts sufficient to state a cause of action or uncertainty. Practice Note: Demurrers for uncertainty are disfavored.

DEMURRERS [Code of Civ. Proc. § 430.10] Also frequently used to object to a Complaint or cause of action for breach of contract because there is a failure to allege whether the contract is oral, written or implied by conduct. Less frequently used to challenge jurisdiction and capacity to sue.

DEMURRERS [Code of Civ. Proc. § 430.10] Practice Note: Sometimes it is better strategically to file an Answer/Denial and Affirmative Defenses to a poorly drafted Complaint than to alert opposing counsel to the weaknesses in the pleading.

MOTIONS TO STRIKE [Code of Civ. Proc. § 435] Also frequently used to strike out all or part of a pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. Practice Note: Frequently used to strike claims and prayers for punitive damages not pled with the requisite specificity.

MOTIONS TO STRIKE [Code of Civ. Proc. § 435] Used to strike out any irrelevant, false or improper matter inserted in any pleading. Practice Note: Most often used to strike portions of a Complaint, but can also be used to strike portions of an Answer and poorly drafted Affirmative Defenses.

Motion to transfer to proper court [CCP 396b] Petition to Compel Arbitration [CCP 1281.2] Cross-Complaint (State) or Counter Claim (Fed) Compulsory [CCP 426.30(a)] Permissive Third Party Claims (Indemnification, Contribution)

MOTION TO QUASH DEPOSITION SUBPOENA [Code of Civil Procedure 1987.1] Used to object to a deposition subpoena. Can be used to prevent a deposition from going forward. Can be used to prevent the production of books, documents, or other things. Court can make any orders necessary to protect against unreasonable or oppressive demands, including protecting against privacy violations.

MOTION TO QUASH DEPOSITION SUBPOENA [Code of Civil Procedure 1987.1] Grounds to quash a deposition subpoena include defects in the form or content of the subpoena. Practice Note: A motion to quash can also be used to attack defective service of a Summons and Complaint.

Form Cross-Complaint [PLD-PI-002] Susan Leadfoot will be the Cross-complainant Who will be the Cross-defendant(s)? - Sleazy - City of Santa Monica - State of CA/Caltrans Required Claims Statute Causes of Action

DISPOSITIVE MOTIONS

  Motions for Summary Judgment (MSJ) and Summary Adjudication (MSA) (Code of Civil Procedure § 437c) Dispositive motions used to dispose of an entire Action, Cause of Action, Defense or claim for Damages. Basis is there is no merit to the Action, Cause of Action, Defense or claim for Damages. MSJ is used to dispose of an entire Action. MSA is used to dispose of one or more individual Causes of Action within an Action. It can also be used to attack one or more Affirmative Defenses or claims for Damages. MSA may be made by itself or as an alternative to a MSJ.

  Motions for Summary Judgment (MSJ) and Summary Adjudication (MSA) (Code of Civil Procedure § 437c) Component parts include: Notice of Motion Memorandum of Points and Authorities Supporting evidence in the nature of declarations, deposition testimony, documents, responses to interrogatories, requests for admissions, etc. Separate Statement of Undisputed Material Facts [Proposed] Order Proof of Service

  Motions for Summary Judgment (MSJ) and Summary Adjudication (MSA) (Code of Civil Procedure § 437c) Timing: May be brought any time after 60 days have elapsed after the general appearance. Shall be heard more than 30 days before the trial date, unless the court for good cause orders otherwise. Requires 75 days notice before the time appointed for the hearing.

  Motions for Summary Judgment (MSJ) and Summary Adjudication (MSA) (Code of Civil Procedure § 437c) Practice Notes: Summary Judgment is often difficult to obtain because there is almost always some viable argument that a “triable issue of material fact” exists. For Summary Judgment to be granted, there must be “no triable issue of material fact” as to the entire Action. Summary Adjudication is somewhat more manageable/obtainable from a defense perspective because many plaintiff attorneys often overreach in pleading causes of action in the complaint.

  Motions for Summary Judgment (MSJ) and Summary Adjudication (MSA) (Code of Civil Procedure § 437c) Service by U.S. Mail increases notice time. 5 days for service inside California, 10 days for service inside the USA, but outside California, and 20 days for service outside the USA. Many courts set trial dates within 12-18 months of the filing of a complaint. This means that all parties must move fairly expeditiously to complete discovery, if they anticipate bringing a MSJ or MSA. Both motions take time to properly prepare and solid evidence to be successful.

Reversal rate on MSJs is fairly high, perhaps as high as 50%.   Motions for Summary Judgment (MSJ) and Summary Adjudication (MSA) (Code of Civil Procedure § 437c) Reversal rate on MSJs is fairly high, perhaps as high as 50%. Appellate court reviews trial court decision de novo. That means the motion is heard all over again by the Court of Appeal.

Motions In Limine Motion used before a jury trial has started to try to exclude or limit use of certain evidence at trial, usually because of a lack of foundation, the evidence is speculative, or its probative value is outweighed by undue prejudice. Based on case law. Generally, must be filed on regular notice so as to be heard at the date and time of the Final Status Conference. Check Local and Department Rules.

Motions In Limine Almost always combined with a request for Evidence Code §402 hearing outside the presence of the jury for a determination of foundation before any evidence on the matter sought to be excluded or limited is submitted to the jury. Component parts include: Notice of Motion Memorandum of Points and Authorities Supporting declarations Exhibits Proof of Service

Motions In Limine Practice Note: Often the judge will make a ruling that is more tentative than final at the hearing before trial. This allows the issue, for better or worse, to be revisited at the time potential introduction of the subject evidence comes into play. The practical effect of this is that the party against whom the ruling is made is not allowed to mention the evidence in opening statement or while questioning witnesses until such time as the judge rules differently.

In-Class Assignment Draft an Answer on behalf of Defendant Susan Leadfoot to Complaint Charles Sleazy Use Judicial Council Form PLD-PI-003 You have 15 min. Good Luck!

Don’t Forget to Bill Your Time!